DPP v Turner [2017] VSC 358

1 Justin Garry Turner, you are charged with two offences:

• killing Kylie Jane Cay - the crime of manslaughter; and
• contravening a family violence intervention order intending to cause harm or fear for safety by assaulting Ms Cay, including hitting her with a hammer to the feet and dragging her by the hair.

You have pleaded guilty to these charges. The purpose of today's hearing is for the court to pronounce sentence. The maximum penalty for the crime of manslaughter is imprisonment for 20 years[1] and for contravening a family violence intervention order in the specified manner it is imprisonment for 5 years.[2]

2 It is a sad occasion on which to be pronouncing sentence for these crimes. The first anniversary of Ms Cay's death was only two days ago. She died on Tuesday, 21 June 2016, the day of the winter solstice, the shortest day of the year, the day on which we get the least light from the sun.

3 The circumstances in which you killed Ms Cay and breached the family violence intervention order involved the infliction upon her of domestic violence. Its nature is shocking to behold and deserving of the strongest condemnation by the court and the community. You were her domestic partner of some seven months. She met her violent death at your hands in the home that you shared, which should have been her sanctuary. Neither alcohol addiction nor the tempestuous nature of your relationship nor any other considerations in any way exculpate you from, or diminish your personal criminal responsibility for, her death or its terrible impact upon her children, parents and extended family. You have accepted that responsibility by entering an early plea of guilty and expressing sincere remorse. This can only go so far in reduction of sentence because of the severe and serious nature of the crimes that you have committed and the circumstances in which you did so.

4 Ms Cay was aged only 44 years at the time of her death. The essential details of her family background are that she was the daughter of Peter and Dawn Cay, who grievously mourn her passing. She had three significant relationships in her life. She was married to Shane Clay, with whom she had a son Seth, whose presence has been strongly felt in this court. She was married to Kelvin Kawau, with whom she had two sons, Tane and Dallas. These three sons have lost their mother. One now lives with his grandfather, Peter, and his partner Lorraine Hope. Ms Cay also had a domestic relationship with Michael Trotter, and then with you. Ms Cay loved her family and especially her children, and they loved her, about which I will say more.

5 Ms Cay died by reason of injuries that you inflicted upon her on 18 June 2016. It is unfortunately no exaggeration to state that you beat Ms Cay to death with punches and kicks to her body, you a man of 31 years and she a woman over a decade older. The beating did not only involve punching and kicking, although these were the ultimate cause of her death. You held a knife to her throat, which was a means of inflicting terror upon her, and dragged her about by her hair, which was a contemptuous act of physical and emotional degradation, a direct attack upon not only her body but also her dignity as a person and a woman. While she was on the floor trying to protect herself, you also applied blows to the soles of her feet with a hammer, which I can only describe as a sadistic infliction of pain and injury purely for its own sake. The violence that you inflicted was protracted. Your assaults upon Ms Cay were not isolated incidents, although you will be sentenced here only for the offences with which you have been charged.

6 Ms Cay did not passively surrender to your violent behaviour. I infer from the defensive wounds on your face and body that she bravely tried to fight you off. But she was overwhelmed by your superior physical strength. Besides trying to fight you off, she tried to escape, and in fact did. Despite her injuries, she managed to crawl out of the house into the backyard and hid in the kennel with the family dog for an hour while you were looking for her. She found in the kennel with the dog the safety you deprived her of in her home.

7 Ms Cay's strong will to live got her to hospital via an ambulance on the evening of 18 June 2016. She was treated for her wounds and gave an account of the beating to nurses and the police, expressing feelings of fear and dread of you. Like so many women in this situation, her desire was not to get you into trouble but for the violence to stop. But, realising that something had to be done, she agreed to co-operate with the police who, with her permission, photographed her wounds and searched for you at her home. In doing so, she was concerned about the impact of the violence upon her children, for she did not want them to see her suffering. Ms Cay has died but her accounts here live on as the main basis for bringing you to justice, on your plea of guilty.

8 You were arrested at 10.30 pm on 18 June while Ms Cay was at the hospital and you have been in custody ever since. She was discharged home on 20 June. Unfortunately, the nature and extent of her injuries were not fully appreciated and she died of internal bleeding due to a ruptured spleen the next day. By the early hours of the morning, she was in agonising pain and needed emergency assistance. Fighting for her life and revealing a determination that must have been a feature of her character, she sought to enlist the help of her neighbour and trusted friend, and your mother, Diane Turner, to obtain an ambulance.

9 The circumstances in which the request for that ambulance was refused give rise to serious concern. Ms Cay was brutally beaten, attended hospital, discharged home after treatment, called an ambulance in distress and extreme pain during the early hours of the next morning, the request was refused, she had no money for a taxi to the hospital and she died of her wounds later that day. In my view, it is necessary to consider whether these circumstances should be the subject of a coronial investigation into the response of the emergency services. I will therefore be referring the case to the Coroner through the Director of Public Prosecutions, who acknowledges the need for this to happen. It is therefore not appropriate that I make any disposal orders at this stage. I will do so if and when appropriate.

10 Although Ms Cay apparently had her difficulties with drugs and alcohol, her sons, parents and other family, and her friends, loved her, and she loved them in return. The people involved in the events that occurred at the time of her death so reveal. There is your mother, Diane, and her friend, Peter Murray, who were supportive neighbours from across the road. Your mother is grievously ill and supports you in the sentencing process but she too is a victim of the crime. There is Michael Smart from the IGA supermarket down the road. He saw Ms Cay the night before she died, still with a hospital wristband attached and injuries still restricting her movements. There is her father, Peter, and his partner, Lorraine, who were in regular contact with her. There is her mother, Dawn, who was so concerned for her daughter's welfare due to the lack of contact that she drove to Port Fairy on 22 June 2016, only to find her dead in her own home. There are her three sons, Seth, Tane and Dallas, for whom she lived and breathed. Seth was with his grandmother when his mother's body was discovered. Even people with whom she had recent contact - nurses, domestic violence support workers and others - speak of her in ways that show that they too have been touched. Ms Cay was affectionately known as 'Kiddle' and 'Mouse'. She is depicted in memorable family photographs that I have seen and was a unique woman who had a special capacity to love and be loved. I hope that this is how she will be remembered, after the pain of her passing has receded with time, the only real source of healing in this situation.

11 Because it reveals so much about the inimical individual and social consequences of domestic violence - which is perpetrated in the vast majority of cases upon women by men - I will say more about how Ms Cay died and how her body was discovered. She died a cold and lonely death on the floor of the bathroom of her home. As I have said, her mother Dawn and son Seth discovered her body. On entering the house to find a bloodied scene, Seth felt immediate concern for his grandmother and said 'Don't look in here Nan'. He is to be commended for doing so. Others would understandably have felt more concern for themselves. His were words of pure humanity in circumstances of dreadful inhumanity. On finding her daughter cold and apparently dead in the bathroom, Dawn nonetheless worked tirelessly administering CPR until the ambulance arrived and she was pronounced dead. So much love did the mother have for the daughter that she laboured as hard to save her from death as she had to give her birth. Like many parents who have had to bury their children, she suffers not just from inconsolable grief but a ridiculous burden of guilt that she did not do more or visit her earlier.

12 Three children see their mother covering up the cause of her bruises and are subsequently orphaned, their future children never to know their grandmother. A woman obtains more protection in a kennel with the family dog than in her own home with her male partner. The eldest son finds his mother dead in a bloodied domestic scene. Awaiting an ambulance, an elderly mother labours to revive to life the cold body of the now-adult child whom she birthed, left not just with grief but guilt. An elderly father is angry, bewildered and bereft. Parents bury their daughter against the order of nature. Other family, both natural and extended, as well as many friends, soulfully mourn. The perpetrator's mother - a neighbour and friend of the victim - is terminally ill with lung cancer and needs her son. She is left to support him in court and visit him far away in prison when she can, if she can, or talking to him on the telephone. The perpetrator's young brother remains loyal and wants the court to see behind the man in the dock to the sibling with whom he grew up. More than any of this, a special and precious human life - that of Kylie Jane Cay - has been lost.

13 Such is the great contemporary ugliness of domestic violence as revealed by the facts of this case. By reason of these and so many other dreadful consequences, this court treats crimes of domestic violence, especially those involving homicide, very seriously. As King J has said in several cases and specifically so in R v Mulhall,[3] 'the law will do all it can to protect women from violent domestic partners'. Therefore, the court condemns domestic violence in the strongest possible terms and stresses in this case, as it has in many others, that specific and general deterrence are the most important sentencing considerations.

14 What then is the measure of the life that has been lost? Is the measure of the life of Kylie Jane Cay the long sentence of imprisonment that must be imposed upon you? It is not, for this is required by sentencing principles whose purpose is to bring the perpetrator to justice, not to replace a life. Is her life to be measured by the cold and lonely manner of her death? It is not, for this was a product of the nature of the injuries that she sustained and other circumstances that the Coroner may find worthy of investigation. Is it to be measured by the feelings of grief, guilt and loss that are so presently enveloping for all concerned? I hope that, as time passes, it will not be that, and the virtue and vitality of her life will be remembered for what it was: Kylie who loved both Monty Python and ACDC, Kylie the champion student runner, Kylie the family and community historian, including of Pennyweight Flat Children's Cemetery and Port Fairy Cemetery, Kylie the volunteer, Kylie the woman of enthusiasms - most recently for digging up valuable old bottles, and Kylie the caring and loving mother and daughter. The measure of the life of Ms Cay is the love that she gave to others and that others gave to her, most especially her children, which is her perpetual gift to them, and which she took with her to her grave.

15 The court has received four victim impact statements, one from Ms Cay's eldest son Seth, most of which was read to the court at the plea hearing, one from her father Peter and another from his partner Lorraine, and one from Ms Cay's mother Dawn. I have drawn upon these statements in considering this sentence and in preparing these reasons for sentence. To Seth, I would say that your mother would be very proud of you, and would want you and your brothers to give yourselves time to grieve, and most importantly to go on with your three lives and remember how much she loved you. To Peter, I would say that your statement is a moving tribute to all that was positive in your daughter's life. To Lorraine, I would say that your strong feelings for your adopted family, and Ms Cay, shine very brightly. To Dawn, I would say that no words can describe what you have endured, but most parents who have had to bury a child eventually find, in time, the pain subsides, although the sense of loss does not. I have also taken these statements into account in deciding to refer the case to the Coroner in relation to the response of the emergency services.

16 I appreciate from these statements how grievously the family has been impacted by Ms Cay's death and the circumstances in which it occurred. I encourage each of you, if you have not already done so, to consider obtaining professional psychological assistance, for which compensation is available. The experience of the justice system is that this can significantly help with overcoming grief and loss.

17 Your assault upon Ms Cay's person, which included hitting her feet with a hammer and dragging her by the hair, represented a breach of the family violence intervention order that was issued by the Magistrates' Court at Warrnambool on 12 February 2016 and served upon you on that day, and in a manner that was intended to cause her harm or fear for her safety or which you knew would probably so do.[4]

18 That you committed this contravention in circumstances associated with the crime of manslaughter is a very serious matter. Family violence intervention orders are not worthless pieces of paper. The general purpose of a family violence intervention order is to provide legally enforceable protection for the safety of the individual, usually a woman at risk of violence from a man.[5] When the contravening conduct is a crime, the contravention is a separate crime to that conduct. The contravention in the present case is an aggravating feature of the manslaughter. But to avoid the risk of double punishment, to which injustice you must not be subjected, I will exclude this feature from the manslaughter sentence and impose a separate sentence for the contravention charge. In doing so, I will take into account that your actions in hitting Ms Cay on the soles of her feet with a hammer and dragging her by the hair were not just acts of criminal assault intending to cause, or done in the knowledge of the probability of causing, harm and fear. They were also acts of humiliation and degradation of her as a person and especially of her as a woman. The more specific purpose of a family violence intervention order is to protect the victim from bodily injury and other forms of family violence, including non-physical violence, and this includes protecting a woman from humiliation, degradation and other injury to her dignity, personal autonomy and wellbeing, as well as from fear of physical or mental harm. That purpose was defeated by your criminal actions, which must be reflected in a real term of imprisonment by way of penalty on that charge.

19 In the present case, the court must be astute to ensure that the sentence does not implicitly blame Ms Cay as the victim. She may have had issues with alcohol and drugs. This does not mean that she had fewer rights than other people or was not deserving of the full protection of the criminal law. There are references in the record to such matters as the relationship between you and Ms Cay being tempestuous, to an occasion on which she chased you down the street with a knife, to her being a nightmare when drinking and to a friend having her charged by the police. Such matters must be considered in their very limited place. Other than providing context for understanding her life, your relationship and the circumstances of the crimes, they are completely irrelevant. They must not be allowed to insinuate themselves into the sentencing process in a way that subtly and covertly transfers to Ms Cay as the victim a degree of responsibility for what happened. She had no degree of responsibility for what happened to her. These matters do not diminish your personal criminal responsible for her death. I do not think your submissions suggest otherwise, but I make these matters absolutely clear.

20 Your background and personal circumstances are that you were born in Warrnambool and grew up there and in Port Fairy. You were raised by your mother from an early age and have had no contact with your father for around ten years. As I have said, your mother is terminally ill with lung cancer. You have an older half-brother, Corie Anderson, who lives in Western Australia. Your younger brother, Jeremy Turner, lives and works locally and his moving testimonial on your behalf was read to the court at the plea hearing. I get from that testimonial that there are two sides to Justin Turner, the gentle and loving son and brother, a man who loves children, and the side that Jeremy does not recognise, a man who would kill his female partner in uncontrolled anger, aggression and rage. Your rehabilitation will depend on whether you can bring the gentle and loving son and brother to the fore, and learn not to be a man who is controlled by, because he fails to control, his anger, aggression and rage.

21 Your education and employment history is one of disadvantage. Your schooling was inconsistent and finished at the beginning of year 9. Your employment has included periods as a baker and cook in Port Fairy, slaughtering at a Warrnambool abattoir and concreting from time to time, depending on the level of your alcohol consumption and other personal circumstances.

22 There have been two significant relationships in your life. The first was with Coe Ward in 2005-2009 with whom you had your son James in 2007. You have had little contact with him since separating from Ms Ward, who moved with him to Queensland. You did have video contact with James recently, which went well. I give you credit for wanting to have this contact, for parental responsibility does not end when a parent is imprisoned and prison authorities will do all they can to facilitate it. James would not be the first child to be the father of the man. I think this contact, as long as it is in the best interests of James, would be positive from the point of view of your likely rehabilitation. Your only other significant relationship has been with Ms Cay, the deceased.

23 The court has a comprehensive report prepared on your behalf by Patrick Newton, a clinical and forensic psychologist, one of the best reports of its kind that I have seen. He gives a full account of your background, mental health, prior criminal history and especially your alcohol addiction.

24 Your determination to overcome your alcoholism, as reported by Mr Newton, is very positive for your rehabilitation. However, despite the able submissions of your counsel, I do not accept that alcohol or substance abuse is the only or even the main explanation for your crimes. The manner and circumstances in which you killed Ms Cay were the product of uncontrolled anger, aggression and rage. True, you were disinhibited due to extremely high alcohol consumption on the day and perhaps due to methamphetamine consumption on the previous day. I take this into account. But it was the anger, aggression and rage that you felt towards Ms Cay and did not control that led to her death at your hands. Killing someone in a violent and sustained outburst of anger, aggression and rage is a severe crime deserving of severe punishment. That is so even where the crime is manslaughter and not murder because it is not death or causing really serious injury that was intended. Again I would refer to what King J said in R v Mulhall, which applies equally to your case:

Women are entitled to have domestic relationships with people that do not result in their death simply because their partner loses their temper or has too much to drink or a combination of [drugs] and alcohol reduces their inhibitions. It is inexcusable.[6]

25 Mr Newton's report contains an important section on conflict management (see paras 38-43). Although you do not see yourself as an angry or hostile man and value peaceful relationships, you have a comparatively poor level of emotional awareness, a poor understanding of the processes associated with anger and limited coping skills generally. The report recommends as beneficial to your rehabilitation, but I cannot strongly enough recommend as indispensable to your rehabilitation, participation in a structured anger-management program.

26 Turning to your alcoholism, your psychologist sees you as a person whose life has been overshadowed by the severe alcoholism into which you descended from at least 2009. You have a Severe Alcohol-Use Disorder that is in remission in the controlled environment of imprisonment, where your health and wellbeing have improved markedly. The level of your alcohol consumption was extraordinary. I agree with your own assessment as recorded in the report. You have to pull your head in and get on with it. You have no time to waste drinking. This is not an illness that operates to diminish your responsibility or mitigate the sentence for the crimes that you committed, and no others from which you suffer fall into that category.

27 I am prepared to accept that you have prospects for rehabilitation. You have here pleaded guilty and shown genuine remorse. You are determined never to drink again. You are taking advantage of opportunities that are available in prison for employment. You intend to engage in structured rehabilitation programs when these become available. You are supported by your family, especially your mother, Diane, and your, brother Justin. Your health and wellbeing have improved in the confined environment of prison. While I must be guarded in assessing your prospects for rehabilitation, I think there are prospects that a significant period of parole will enhance, as submitted by your counsel and suggested by Mr Newton.

28 As you do not present to the court as a person of good character, this is not a consideration in mitigation of sentence. You have a long criminal record, including for making threats to kill, breaching orders of courts, crimes of violence and property offences. However, nothing in your prior criminal history approaches manslaughter in severity and I think you are shocked at that which you have now done.

29 I accept your counsel's submissions that you are not here to be sentenced for uncharged acts alleged against you (your relationship with Ms Cay involved domestic violence on your part, fuelled by alcohol; you assaulted her a week before she died; and you had choked her to the point of unconsciousness on previous occasions). Such acts have a limited relevance.[7] In this case, that relevance is to the crime of manslaughter by explaining the context in which it occurred by showing that the acts constituting the crime were not isolated. I have given consideration to the uncharged acts only upon this basis.

30 When all is said and done, there is one mitigating consideration in this case, but it is a very important consideration.[8] It is your early plea of guilty. It is one of significance and utility because it saves victims, who include Ms Cay's mother Dawn and son Seth, and other witnesses, the burden of having to go through a traumatic trial. Unlikely as acquittal may actually have been, you had issues that could legitimately have been raised in defence. The community has been saved the expense of a full trial. By reason of your guilty plea, finality in the criminal process will be achieved today almost on the first anniversary of Ms Cay's death. That is no small matter. Your plea is indicative of sincere remorse, especially when account is taken of what counsel said on your behalf at the plea hearing and what you told Mr Newton:

I fell pretty shit about it. It's not a good thing. I'm really sorry for what happened and all that, but what good does that do. There's nothing at all I can do for anyone to make it better. I think about it every day and it makes me depressed and sad; it just seems hopeless to me.

Having regard to your level of education and communication skills, I think this expression of remorse is genuine and not just self-pity. I am not sure that everything that you say is accurate. The victim impact statements denounce your terrible actions, not you as a person. They do not say you as a person are hopeless.

31 In considering the sentence to be imposed, I have had regard to the sentences in the cases to which your counsel referred, the latest sentencing statistics published by the Sentencing Advisory Council on the crime of manslaughter (Sentencing Snapshot No 199, April 2017), the summaries of the sentences imposed by the Court of Appeal for manslaughter from November 2013 to the present which is available in the Sentencing Manual published online by the Judicial College of Victoria, and other cases that are publicly available.

32 However, in the end, I must impose sentences that are appropriate for your particular crimes having regard to their objective gravity. In my view, yours was a severe example of the crime of manslaughter. I reject your counsel's submission that this was a mid-range case. That submission completely understates the severity of the crime. The contravention of the family violence intervention order was a serious example of this crime. In relation to both offences, there is one mitigating sentencing consideration - your early plea of guilty - which must be given due weight, particularly (but not only) in relation to the issue of eligibility to apply for parole. But the most important sentencing considerations are denunciation and specific and general deterrence.[9]

33 Denunciation and specific and general deterrence are sentencing principles through which the law gives effect to the fundamental purpose of protecting individuals and the community from crime. Ms Cay and all other women have an inviolable human right to life, to equality - not just the appearance of equality but to real equality, to physical and emotional integrity, to respect for their dignity and personal autonomy, to loving relationships with children and others, and to freedom from fear of physical or mental harm. They look to the law for protection from men who would perpetrate crimes of assault or homicide upon them in a domestic setting by reason of failing to control their anger, aggression and rage. While the police cannot be present in every home on every occasion of risk, the values and standards of human behaviour that the criminal law demands are omnipresent. The courts must respond appropriately through the sentencing process when those standards are severely or seriously breached, as they have been in this case, for this vindicates the individual interests of victims in seeing that perpetrators are brought to justice, as well as the general interests of the community in seeing that justice is so done, and also performs the important educative function of positively influencing how the community, and especially men, value, respect and treat women.

34 Therefore, on the charge of manslaughter, you will be imprisoned for a period of 11 years. On the charge of contravening a family violence intervention order, you will be imprisoned for a period of two years. I direct that one year of the sentence on the charge of contravening a family violence intervention order is to be served cumulatively with the sentence on the charge of manslaughter. This results in a total effective sentence of imprisonment for 12 years. I direct that you serve a period of nine years before you are eligible to apply for release on parole.

35 I declare that your pre-sentence detention is a period of 370 days not including this day and direct that this be entered in the records of the court and reckoned as time already served pursuant to s 18(1) of the Sentencing Act 1991 (Vic).

36 Pursuant to s 6AAA(2) of the Sentencing Act, I also declare that, had you not pleaded guilty to these offences, the total effective sentence I would have imposed would have been imprisonment for 15 years with a minimum period before being eligible to apply for release on parole of 12 years.

[1] Crimes Act 1958 (Vic) s 5.

[2] Family Violence Protection Act 2008 (Vic) s 123A(2).

[3] [2012] VSC 471 (10 October 2012) [33].

[4] The offence that you have pleaded guilty to committing is the offence of contravening a family violence intervention order intending to cause, or knowing that your conduct would probably cause, physical or mental harm to Ms Cay or apprehension or fear on her part for her own safety: see s 123A(2) of the Family Violence Protection Act.

[5] Section 1 of the Family Violence Protection Act provides that the purpose of the Act is to:

(a) maximise safety for children and adults who have experienced family violence; and

(b) prevent and reduce family violence to the greatest extent possible: and

(c) promote the accountability of perpetrators of family violence for their actions.

[6] [2012] VSC 471 (10 October 2012) [33].

[7] DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191, 203 [53] (Ashley JA, Neave JA and Lasry AJA agreeing).

[8] See s 5(1)(c) and s 6AAA of the Sentencing Act 1991 (Vic).

[9] See s 5(1)(b) and (d) of the Sentencing Act.